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​ A SUBCONTRACTOR’S DAMAGES FOR CONSTRUCTION DELAY CANNOT BE PROVEN BY COMPARING ACTUAL COSTS TO THE BID PRICE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the subcontractor (Frey) did not submit sufficient proof of damages caused by construction delays:

… [W]here a subcontractor is claiming delay damages, the subcontractor “must establish the extent to which its costs were increased by the improper acts because its recovery will be limited to damages actually sustained” … . “[I]t has repeatedly been held improper to prove excess labor costs by comparing the total labor costs for the project with the bid estimate for the labor, because of[, among other things,] the inherent unreliability of the price elements of a bid” … . LPCiminelli, Inc. v JPW Structural Contr., Inc., 2023 NY Slip Op 03112, Fourth Dept 6-9-23

Practice Point: A subcontractor’s damages for construction delay cannot be proven by comparing actual costs to the bid price.

 

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